England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Her Honour Judge Davies)

		Royal Courts of Justice Strand London WC2 Tuesday, 10th July 2001

1. LADY JUSTICE HALE: This is a father's application for permission to appeal against orders made by Her Honour Judge Davies in the Portsmouth County Court on 2nd March 2001 relating to his two children, JE, born on 12th December 1997 and who is now 3 1/2, and JO, born on 14th December 1999 and who is now 19 months. The judge made care orders putting both children in the care of the local authority. She gave the local authority permission to refuse contact between the children and their parents. She dispensed with parental agreement to their adoption as being unreasonably withheld. She freed the children for adoption. Technically, the mother has not participated in this application but she is here today, and the father tells me that she is equally anxious to appeal. Consequently, I will treat this as an application by them both jointly.
2. The facts are set out in an earlier judgment of Her Honour Judge Davies on 13th October 2000. The mother has had six children. First is the oldest child, N, who was then aged 15 and is now living with his father, the mother's first husband. He had been living with the mother but in July 1998, when aged 13, he went to the Social Services and asked for help in locating his father. He was accommodated by the local authority and the mother is reported as saying that she never wanted to see him again. She has not done so.
3. Second and third are N's siblings, A who was 12 at the hearing last October, and S who was then 10. The circumstances relating to them were rather similar. In July 1999 A went to the Social Services saying that he had been sent by his mother. A social worker visited the home and was concerned about S and the state of the house. S was therefore removed. On the next day what are called memorandum interviews were conducted with both children, when they made allegations of neglect and ill-treatment against their mother and their step-father, her present husband, who is the applicant in this case. The judge found that those allegations were true. In October the judge made care orders relating to A and S. The care plan was long term fostering. They have been with the same couple throughout but the plan was to find a more permanent foster home for them. The judge expressed the hope that it would one day be possible for them to go home. It is their wish to do so if things change. There has been no appeal against those orders.
4. Fourthly, there is M who was nearly 7 at the hearing last October. He is the child of the mother and her second husband and is now living with his father. He had been staying at the time when these events began with his grandmother, and in August 1999 he made similar allegations. The judge made an order last October that he should live with his father. Again, there has been no appeal against that order.
5. Fifth and sixth are JE and JO, aged 3 and 1, who are the children of the mother and her third husband, the applicant before the court. The care plan for them initially was that they would stay at home while work was done with the parents to improve their parenting skills and to address the allegations of neglect and ill-treatment of the older children. But that care plan was changed at the hearing in October. It is not clear to me on the papers exactly how that change came about. They were then removed to foster care. The care plan was to adjourn the proceedings for a short period of a few months to see whether the parents could acknowledge their responsibility for the situation with the older children, accept the need for help with their parenting and the mother could make a start on the therapy which it was thought she required. Interim care orders were made while they remained in foster care with contact with their parents.
6. Then JE made what appeared to be allegations of abuse by her parents. The local authority applied for permission to refuse contact. This was granted on 24th January 2001. I have not seen the judgment that was given on that date. The reply from the court is that there is none recorded. But it seems to me that they may have got the date wrong. The order says that it was on 24th January but the judgment says that it was on 29th January. An application was made for the judgment on 29th January. The Civil Appeals Office must seek any judgment for the 24th January. As a result of that, neither child has seen their parents since 30th December 2000.
7. The local authority took the view that the parents had not done what was asked of them. They had not shown a willingness or capacity to change within the timescale required by young children. The care plan was therefore for adoption. The matter came before Her Honour Judge Davies on 2nd March and she made orders giving effect to that care plan.
8. The grounds of challenge have been very fully put by the applicant, and I am grateful to him. They seem to me to be summarised properly as follows. First, there was a denial of a fair trial. In particular, they were not allowed to instruct their own expert to challenge the findings of the expert witness, a psychologist, Miss Linden. She was instructed but it was not a joint instruction as had been contemplated, and the parents complain that she was foisted on them by the local authority and was biased against them. They make the point that she was not a child psychologist and that she made improper use of medical records, to the release of which the mother had not consented, suggesting that the mother had complained of sexual abuse of her by her own father. They were not allowed to have that report released so that they could either instruct their own expert or seek advice upon it. A comparison is drawn between what went on in these family proceedings and the Civil Procedure Rules in the case of Daniels v Walker. Second, they were denied a fair trial in the conduct of the interviews with the children. They were not allowed to submit their own questions. The questions that were asked were leading and improper. Third, the judge gave undue weight to Miss Linden's report as against the views of those assessing their parenting skills. That is Chris Smith and Ann Adams who were from the local Child and Adolescent Mental Health Service and who were therefore better qualified to make an assessment than Miss Linden. Their assessment contained many favourable aspects. The judge rejected it because it was fundamentally flawed, not having challenged them about their behaviour towards the older children and simply assessing their attitudes and interaction with the younger two children. They point to other favourable reports, that is, from JE's nursery and medical reports. Fourth, it is submitted that it was unfair to change the care plan in relation to the youngest children on the last day of the hearing. The initial care plan was for them to stay at home and for this work to be done. The work was done. The results of that were favourable and it is therefore unfair for there to have been such an abrupt change of plan during the hearing. Fifth, all of this was used as background to the later decision relating to the youngest children. Indeed, the judge was careful to say that she was not making any findings on whether or not J's allegations were true, although she did bear in mind the fact that those allegations had been made. Thus, what happened in October and the evidence before the court in October was the foundation for the interim decision relating to the youngest children and the conclusion that the parents had not lived up to what had been expected of them. Sixth, these matters amount to a denial of the parents' and the children's right to respect for their family life and, for that matter, complaints are made of the denial of the mother's right of free speech to her doctors and to others in the circumstances.
9. The difficulty that I face in assessing those grounds is that none of the relevant documents are presently before the court. The court needs to know more about Miss Linden's qualifications and how she was instructed, when and why any parental application to instruct another expert was refused, what other assessments were made (there clearly were other assessments because the judge refers to them in her judgment), and what the guardian ad litem's views were, when these views changed and why. Without at least some of this information, I have no reason to doubt the judgments made by the judge who had considered all the evidence. It is not for this court to try the case again but simply to identify whether or not there is reason to suppose that the judge went badly wrong or misdirected herself in law. If the applicant had been legally represented I would not have granted this indulgence. As he appears in person, it seems to me only fair that the opportunity should be given to him to place the relevant information before the court. Furthermore, it would be appropriate in the circumstances to require the local authority to attend at the adjourned hearing.
10. I adjourn this application to be heard on notice to the local authority. I will direct that it is listed either before me or before Thorpe LJ before the end of term, which is 31st July 2001. It is a matter of considerable urgency as it relates to two young children for whom the care plan is adoption. I will direct that a transcript of this judgment is made available both to the applicant and to the local authority. I will direct that the Civil Appeals Office inquire whether there is a judgment of 24th January 2001 relevant to this case which can be transcribed.
Order: Application adjourned as per judgment on notice to the local authority.